Stopping a Moving Target

Abstract

Stopping A Moving Target analyzes the important challenge of racial profiling on the highway – the phenomenon of traffic stops that are motivated by the race of the driver. This Article contends that there is a better solution to racial profiling than attempts to identify police officers’ improper motivation for individual stops, an emphasis that the U.S. Supreme Court has, in any event, ruled out as a matter of Fourth Amendment law in Wren v. United States. This Article suggests that a superior approach to profiling would be to limit the category of traffic misconduct for which police may stop a driver to the sort of driving that endangers others and that must accordingly be addressed immediately. At the present time, it is virtually impossible to drive any substantial distance without giving rise to probable cause for a traffic stop: the traffic law everywhere makes an enormous number of sometimes-conflicting demands of drivers. If the government addressed most of these traffic violations in other (potentially more effective) ways (for example, by using light cameras and other technology to keep track of low-level speeding), then the often-traumatizing, resentment-generating, humiliating, and sometimes dangerous encounters that accompany a traffic stop would largely come to a halt, both for racially targeted drivers and for other drivers whose conduct does not pose the sort of threat to public safety that warrants a police encounter. Only by thus substantially reducing the volume of permissible traffic stops, Colb suggests, could we make a dent in police discretion, and broad police discretion is what ultimately and predictably results in racial profiling.